LOAN AGREEMENT
This Loan Agreement (this "Agreement") is entered into as of the 31st
day of January, 2000, by and between Prime Refractive Management, L.L.C., a
Delaware limited liability company, and Prime Refractive, L.L.C., a Delaware
limited liability company.
Definitions:
EFFECTIVE DATE: January 31, 2000
BORROWER: Prime Refractive, L.L.C., a Delaware limited liability company
BORROWER'S
ADDRESS: 0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx X-000,
Xxxxxx, Xxxxx 00000
LENDER: Prime Refractive Management, L.L.C.,
a Delaware limited liability company
LENDER'S
ADDRESS: 0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx X-000,
Xxxxxx, Xxxxx 00000
NOTES:
Working Capital Note: Promissory Note (Line of Credit) in the maximum
principal amount of $200,000 (the "Working Capital Maximum Principal
Amount") dated as of January 31, 2000, executed by Borrower, and
payable to the order of Lender as provided therein (the "Working
Capital Note").
Development Facility Notes: Promissory Notes in substantially the form
attached as Exhibit G2 to the Contribution Agreement (as hereinafter
defined), in the aggregate maximum original principal amount not to
exceed $29,165,000 (the "Development Facility Maximum Principal
Amount"), executed by Borrower and payable to the order of Lender as
provided therein (the "Development Facility Notes"). Collectively, the
Working Capital Notes and the Development Facility Notes are referred
to herein as the "Notes."
SECURITY AGREEMENTS: All documents, agreements and instruments hereinafter or
herewith executed by Borrower, LASIK Investors, L.L.C., a Delaware limited
liability company ("LASIK") or any Target Center securing this Agreement or the
obligations under any of the Notes.
LOAN DOCUMENTS: This Agreement, the Working Capital Note, the Development
Facility Notes, the Security Agreements, and all other documents, agreements,
and instruments now or hereafter existing, evidencing, securing, or otherwise
relating to this Agreement and any transactions contemplated by this Agreement,
as any of the foregoing items may be modified or supplemented from time to time.
INDEBTEDNESS: All present and future indebtedness, obligations and liabilities
of Borrower to Lender, all present and future indebtedness, obligations and
liabilities of any Target Center to Lender, and all renewals, extensions and
modifications of either of the foregoing, arising pursuant to any of the Loan
Documents and all interest accruing thereon, and all other fees, costs,
expenses, charges and attorneys' fees payable, and covenants performable, under
any of the Loan Documents (including without limitation this Agreement).
DEFINED TERMS: Terms not otherwise defined herein shall have the meaning
provided in that certain Contribution Agreement dated effective September 1,
1999, by and among Barnet Xxxxxxx Eye Center, P.L.L.C., Xxxxx X. Xxxxxxx, M.D.,
Xxxxxx X. Xxxxxx, M.D., Xxxx Xxxxxxxxx, Prime Medical Services, Inc. ("PMSI"),
Prime Medical Operating, Inc., Borrower, LASIK, Prime/BDR Acquisition, L.L.C.
and Prime/BDEC Acquisition, L.L.C. (as amended by that certain First Amendment
to Contribution Agreement dated as of January 31, 2000, among the foregoing
parties, the "Contribution Agreement"). For the purposes hereof the terms
"Target Centers" and "Target Center" shall have the meaning set forth in the
Contribution Agreement, but shall include, upon the acquisition of a Target
Center by Borrower or any subsidiary or affiliate of Borrower, the subsidiary or
affiliate utilized to make such acquisition.
SUBORDINATION: Certain liens arising in connection with this Agreement in favor
of Lender are subordinate to liens in favor of lenders under that certain Loan
Agreement for a $14,000,000 advancing term loan (as hereinafter supplemented,
modified, or replaced, the "$14,000,000 Facility"), entered into by Secured
Party, Bank of America, N.A., as administrative agent, BankBoston, N.A., as
documentation agent and such lenders.
AGREEMENT:
Borrower has requested from Lender the credit accommodations described
below, and Lender has agreed to provide such credit accommodations on the terms
and conditions contained herein. Therefore, for good and valuable consideration,
the receipt and sufficiency of which Lender and Borrower acknowledge, Lender and
Borrower hereby agree as follows:
ARTICLE I
THE WORKING CAPITAL LOAN
1.1 The Working Capital Loan. Lender agrees to lend and Borrower agrees
to borrow an amount not to exceed the Working Capital Maximum Principal Amount
on the terms and conditions set forth herein (the "Working Capital Loan"). The
Working Capital Loan will be evidenced by the Working Capital Note.
1.2 Revolving Line of Credit. Subject to and in reliance upon the
terms, conditions, representations and warranties hereinafter set forth, Lender
agrees to make advances (the "Working Capital Advances") to Borrower from time
to time during the period from the Effective Date to and including September 1,
2000 (the "Maturity Date"), in an aggregate amount not to exceed the Working
Capital Maximum Principal Amount. Each Working Capital Advance must be either
$10,000 or a higher integral multiple of $10,000. Funds borrowed and repaid may
be reborrowed, so long as all conditions precedent to Working Capital Advances
are met. The purpose of the Working Capital Advances is to provide funds to
Borrower for working capital and for other general business purposes of
Borrower.
1.3 Interest and Repayment. Borrower shall pay the aggregate unpaid
principal amount of all Working Capital Advances in accordance with the terms of
the Working Capital Note evidencing the indebtedness resulting from such Working
Capital Advances. Interest on the Working Capital Advances shall be due and
payable in the manner and at the times set forth in the Working Capital Note,
with final maturity of the Working Capital Note being on or before the Maturity
Date.
1.4 Making Advances. Each Working Capital Advance shall be made within
two business days of written notice (or telephonic notice confirmed in writing)
given by noon (Austin, Texas time) on a business day of Lender by Borrower to
Lender specifying the amount and date thereof (which may be the same business
day) and if sent by wired funds, at Lender's option, the wiring instructions of
the deposit account of Borrower to which such Working Capital Advance is to be
deposited.
1.5 Payments and Computations. Borrower shall make each payment
hereunder and under the Working Capital Note on the day when due in lawful money
of the United States of America to Lender at Lender's Address for Payment in
same day funds. All repayments of principal on the Working Capital Note shall be
in a minimum amount of $1,000, or a higher integral multiple of $1,000. All
computations of interest shall be made by Lender on the basis of the actual
number of days (including the first day but excluding the last day) in the year
(365 or 366, as the case may be) elapsed, but in no event shall any such
computation result in an amount of interest that would cause the interest
contracted for, charged or received by Lender to be in excess of the amount that
would be payable at the Highest Lawful Rate, as herein defined.
ARTICLE II
THE DEVELOPMENT FACILITY LOANS
2.1 The Development Facility. Subject to the terms of the Contribution
Agreement and the terms, conditions, representations and warranties hereinafter
set forth, Lender agrees to lend Borrower from time to time, the amounts
necessary to acquire or develop Target Centers, in an aggregate amount not to
exceed the Development Facility Maximum Principal Amount (collectively, the
"Development Facility Loans").
2.2 Development Facility Loans. Each Development Facility Loan will
finance up to 100% of the purchase price (or development cost) of a Target
Center being acquired (or developed) by Borrower. The parties acknowledge that
the grant of any Development Facility Loan does not create any obligation on the
part of Lender to extend further Development Facility Loans. Additionally, each
Development Facility Loan is subject in all respects to Lender obtaining prior
written approval from the lenders under (but only if such approval is required
under) either the $14,000,000 Facility or that certain Loan Agreement for a
$86,000,000 revolving credit loan entered into by PMSI, Bank of America, N.A.,
as administrative agent, BankBoston, N.A., as documentation agent and other
lenders named therein and the execution and delivery of such documents by
Borrower as may be required under the Contribution Agreement, this Agreement or
any Transaction Document (as such term is defined in the Contribution
Agreement). Pursuant to the Contribution Agreement, each Development Facility
Loan must be (a) evidenced by a separate Development Facility Note executed by
Borrower, (b) secured by all of LASIK's ownership interest in Borrower as
evidenced by an Assignment and Security Agreement between Lender and LASIK,
dated as of the date of this Agreement, and (c) accompanied by Assignment and
Security Agreements executed by Borrower in the form attached as Exhibit G1 to
the Contribution Agreement. In addition, if Borrower is acquiring, directly or
indirectly, a one hundred percent (100%) interest in a Target Center
(hereinafter referred to as a "100% Target Center"), Borrower shall cause such
Target Center to execute a security agreement, acceptable in form and substance
to Lender, granting to Lender or one of Lender's subsidiaries the highest
available priority security interest in all of the assets of such Target Center.
2.3 Interest and Repayment. Borrower and Target Center shall pay the
unpaid principal amount under each Development Facility Note in accordance with
the terms of the respective Development Facility Note. Payments of interest and
principal on each Development Facility Note shall be due and payable in the
manner and at the times set forth in the respective Development Facility Note.
ARTICLE III
CONDITIONS TO WORKING CAPITAL ADVANCES AND DEVELOPMENT FACILITY LOANS
3.1 Conditions Precedent to Initial Working Capital Advance. The
obligation of Lender to make its initial Working Capital Advance is subject to
the condition precedent that Lender shall have received on or before the day of
such Working Capital Advance the following, each in form and substance
satisfactory to Lender and properly executed by Borrower or other appropriate
parties: (a) the Working Capital Note duly executed by Borrower, and (b) such
other documents, opinions, certificates and evidences as Lender may reasonably
request.
3.2 Conditions Precedent to Each Working Capital Advance/Development
Facility Loan. In addition to the conditions precedent stated elsewhere herein,
Lender shall not be obligated to make any Working Capital Advance or any
Development Facility Loan unless:
(a) the representations and warranties contained in Article IV
are true and correct in all material respects on and as of the date of
such Working Capital Advance or Development Facility Loan, as though
made on and as of such date with such changes therein;
(b) on the date of the Working Capital Advance or Development
Facility Loan, no Event of Default, and no event which, with the lapse
of time or notice or both, could become an Event of Default, has
occurred and is continuing;
(c) there shall have been no material adverse change, as
determined by Lender in its reasonable judgment, in the financial
condition or business of Borrower;
(d) there has been no breach or threatened breach by Borrower
under the Contribution Agreement or any Transaction Document (as such
term is defined in the Contribution Agreement);
(e) with respect to each Development Facility Loan, Borrower executes the
respective Development Facility Note and Borrower executes an
Assignment and Security Agreement in the form attached as Exhibit G1 to
the Contribution Agreement, and otherwise in form and substance
acceptable to Lender wherein Lender is granted a first lien perfected
security interest in all of Borrower's or Borrower's subsidiaries'
ownership interest in the Target Center and related acquisition
documents;
(f) LASIK shall have acknowledged in writing its prior grant to Lender of a
first lien perfected security interest (subordinate only to liens
granted as of the date of this Agreement by LASIK in favor of the
lenders under the $14,000,000 Facility) in all of LASIK's ownership
interest in Borrower, evidenced by that certain Assignment and Security
Agreement between LASIK and Borrower dated as of the date of this
Agreement, and LASIK shall be in compliance with all of its obligations
thereunder;
(g) if Borrower is using a Development Facility Loan to
acquire, directly or indirectly, a 100% Target Center, Borrower shall
cause such Target Center to execute a security agreement, acceptable in
form and substance to Lender, granting to Lender or one of Lender's
subsidiaries the highest available priority security interest in all of
the assets of such Target Center; and
(h) Lender shall have received such other approvals, opinions,
documents, certificates or evidences as Lender may reasonably request
(in form and substance reasonably satisfactory to Lender). Each request
for an Working Capital Advance or Development Facility Loan shall be
deemed a representation by Borrower that the conditions of this Section
3.2 have been met.
ARTICLE IV
BORROWER'S REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender as follows:
4.1 Good Standing. Borrower is a duly formed limited liability company,
duly organized and in good standing, under the laws of Delaware and has the
power to own its property and to carry on its business in each jurisdiction in
which Borrower operates.
4.2 Authority and Compliance. Borrower has full power and authority to
enter into this Agreement, to make the borrowing hereunder, to execute and
deliver the Loan Documents and to incur the indebtedness described in this
Agreement, all of which has been duly authorized by all proper and necessary
action of its managers and members. No further consent or approval of any public
authority is required as a condition to the validity of any Loan Document, and
Borrower is in compliance with all laws and regulatory requirements to which it
is subject.
4.3 Binding Agreement. This Agreement and other Loan Documents when
issued and delivered pursuant hereto for value received will constitute, valid
and legally binding obligations of Borrower in accordance with their terms.
4.4 Litigation. There are no proceedings pending or, to the knowledge
of Borrower, threatened before any court or administrative agency which will or
may have a material adverse effect on the financial condition or operations of
Borrower or any subsidiary, except as disclosed to Lender in writing prior to
the date of this Agreement. To the knowledge of Borrower, there are no
proceedings pending or threatened against any Target Center.
4.5 No Conflicting Agreements. There are no provisions of Borrower's
organizational documents and no provisions of any existing agreement, mortgage,
indenture or contract binding on Borrower or affecting its property, which would
conflict with or in any way prevent the execution, delivery, or carrying out of
the terms of the Loan Documents.
4.6 Ownership of Assets. Borrower will at all times maintain its
tangible property, real and personal, in good order and repair taking into
consideration reasonable wear and tear.
4.7 Taxes. All income taxes and other taxes due and payable through the
date of this Agreement have been paid prior to becoming delinquent.
ARTICLE V
BORROWER'S AFFIRMATIVE COVENANTS
So long as Borrower may borrow under this Agreement and until payment
in full of the Working Capital Note and all Development Facility Notes, and
performance of all other obligations of Borrower and Target Centers hereunder or
thereunder, Borrower covenants and agrees to do the following:
5.1 Financial Statements.
--------------------
(a) Maintain, and cause each Target Center to maintain, a
system of accounting satisfactory to Lender and in accordance with
generally accepted accounting principles consistently applied, and will
permit Lender's officers or authorized representatives to visit and
inspect Borrower's or Target Center's books of account and other
records at such reasonable times and as often as Lender may desire
during office hours and after reasonable notice to Borrower, and pay
the reasonable fees and disbursements of any accountants or other
agents of Lender selected by Lender for the foregoing purposes. Unless
written notice of another location is given to Lender, Borrower's books
and records will be located at Borrower's Address.
(b) Furnish to Lender year end financial statements, of
Borrower and each Target Center, to include balance sheet, operating
statement and surplus reconciliation, together with an officer's
certificate of compliance with this Agreement including computations of
all quantitative covenants, within 90 days after the end of each annual
accounting period.
(c) Furnish to Lender quarterly financial statements, of
Borrower and each Target Center, to include balance sheet and profit
and loss statement, together with an officer's certificate of
compliance with this Agreement including computations of all
quantitative covenants, within 45 days of the end of each such
accounting period.
(d) With each balance sheet delivered under subsections (b) or
(c) of this Section 5.1, an aging of all Accounts Receivable.
(e) Promptly provide Lender with such additional information,
reports or statements respecting the business operations and financial
condition of Borrower or any Target Center, as Lender may reasonably
request from time to time.
5.2 Insurance. Maintain, and cause each Target Center to maintain,
insurance with responsible insurance companies on such of its respective
properties, in such amounts and against such risks as is customarily maintained
by similar businesses operating in the same vicinity, specifically to include a
policy of fire and extended coverage insurance covering all assets, and
liability insurance, all to be with such companies and in such amounts
satisfactory to Lender and to contain a mortgage clause naming Lender as its
interest may appear. Evidence of such insurance will be supplied to Lender.
5.3 Existence and Compliance. Maintain, and cause each Target Center to
maintain, its organizational existence in good standing and comply with all
laws, regulations and governmental requirements applicable to it or to any of
its property, business operations and transactions. Borrower further agrees to
provide Lender with copies of all instruments filed with the Delaware Secretary
of State amending and/or renewing Borrower's certificate of formation.
5.4 Adverse Conditions or Events. Promptly advise Lender in writing of
any condition, event or act which comes to its attention that would or might
materially affect Borrower's or any Target Center's financial condition,
Lender's rights under this Agreement or any of the Loan Documents, and of any
litigation filed against Borrower or to its knowledge against any Target Center.
5.5 Taxes. Pay all taxes as they become due and payable.
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5.6 Maintenance. Maintain, and cause each Target Center to maintain,
all of its respective tangible property in good condition and repair, reasonable
wear and tear excepted, and make all necessary replacements thereof, and
preserve and maintain all licenses, privileges, franchises, certificates and the
like necessary for the operation of its business.
5.7 Application of Earnings. Except as expressly contemplated in
Section 4.3(e) of the Contribution Agreement, pay all available funds toward
repayment of the Working Capital Note and any Development Facility Notes,
regardless of whether payment of such amounts exceeds the minimum required
payments under the Working Capital Note and the Development Facility Notes.
ARTICLE VI
BORROWER'S NEGATIVE COVENANTS
So long as Borrower may borrow under this Agreement and until payment
in full of the Working Capital Note and all Development Facility Notes, and
performance of all other obligations of Borrower or Target Center hereunder or
thereunder, Borrower will not, and will cause each of the Target Centers to not,
without the prior written consent of Lender:
6.1 Transfer of Assets. Enter into any merger or consolidation, or
sell, lease, assign, or otherwise dispose of or transfer any assets except in
the normal course of its business.
6.2 Change in Ownership or Structure. Dissolve or liquidate; become a
party to any merger or consolidation; reorganize as a professional corporation;
acquire by purchase, lease or otherwise all or substantially all of the assets
or capital stock of any corporation or other entity; or sell, transfer, lease,
or otherwise dispose of all or any substantial part of its respective property
or assets or business.
6.3 Liens. From and after the date hereof grant, suffer, or permit
liens on or security interests in its respective assets, or fail to promptly pay
all lawful claims, whether for labor, materials, or otherwise, except for
purchase money security interests arising in the ordinary course of its
respective business.
6.4 Loans. Make any loans, advances or investments to or in any joint
venture, corporation or other entity, except for the purchase of obligations of
Lender or U.S. Government obligations or the purchase of federally-insured
certificates of deposit.
6.5 Borrowings. Except for borrowing or incurring open accounts payable
to unaffiliated third parties in the ordinary course of business, create, incur,
assume, or liable in any manner for any indebtedness (for borrowed money,
deferred payment for the purchase of assets, lease payments, as surety or
guarantor of the debt of another, or otherwise) other than to Lender in excess
of $25,000 without Lender's prior written consent.
6.6 Violate Other Covenants. Violate or fail to comply with any
covenants or agreements regarding other debt which will or would with the
passage of time or upon demand cause the maturity of any other debt to be
accelerated.
6.7 Equity Redemptions or Restructurings. Apply any of its property or
assets to the purchase, retirement or redemption of any of its equity interests
or in any way amend its capital structure.
6.8 Character of Business. Change the general character of business as
conducted at the date hereof, or engage in any type of business not reasonably
related to its business as presently and normally conducted.
ARTICLE VII
EVENTS OF DEFAULT; NOTICE; ACCELERATION
7.1 Events of Default. If one or more of the following events of
default shall occur and continue after thirty (30) days' written notice to
Borrower, all outstanding principal plus unpaid interest of the Working Capital
Note and each Development Facility Note, and any other indebtedness of Borrower
to Lender, shall automatically be due and payable immediately and Lender shall
have no further obligation to fund under this Agreement.
(a) There shall be any breach or default shall be made in the
payment of any installment of principal or interest upon the Working
Capital Note or any Development Facility Note, when due and payable,
whether at maturity or otherwise; or
(b) There shall be any breach or default (other than by Lender,
Prime Medical Operating, Inc. or Prime Medical Services, Inc.) under
any Loan Document, the Contribution Agreement, or any Transaction
Document (other than those certain Consulting Agreements with Xx.
Xxxxxxx, Xx. Xxxxxx and Xxxx Xxxxxxxxx as required pursuant to the
Contribution Agreement), or any other certificate, agreement or
document contemplated hereby or thereby; or
(c) Any representation or warranty of Borrower contained
herein or in any financial statement, certificate, report or opinion
submitted to Lender in connection with the Working Capital Loan or any
Development Facility Loan, or by Borrower pursuant to the requirements
of this Agreement, shall prove to have been incorrect or misleading in
any material respect when made; or
(d) Any judgment against Borrower or any attachment or other
levy against the property of Borrower with respect to a claim
materially affecting Borrower's financial status remains unpaid,
unstayed on appeal, undischarged, not bonded or not dismissed for a
period of 30 days; or
(e) The bankruptcy, death, or dissolution of any guarantor of the
Indebtedness; or
(f) Borrower makes an assignment for the benefit of creditors,
admits in writing its inability to pay its debts generally as they
become due, files a petition in bankruptcy, is adjudicated insolvent or
bankrupt, petitions or applies to any tribunal for any receiver or any
trustee of Borrower or any substantial part of their respective
property, commences any action relating to Borrower under any
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, or if there is commenced against Borrower any such
action, or Borrower by any act indicates its consent to or approval of
any trustee for Borrower or any substantial part of its property, or
suffers any such receivership or trustee to continue undischarged.
7.2 Lender's Remedies. Upon the occurrence of an Event of Default,
Lender, without notice of any kind, except for any notice required under this
Agreement or any other Loan Document, may, at Lender's option: (i) terminate its
obligation to fund any Working Capital Advance or any Development Facility Loan
hereunder; (ii) declare the Indebtedness, in whole or in part, immediately due
and payable; and/or (iii) exercise any other rights and remedies available to
Lender under this Agreement, any other Loan Document, or applicable laws; except
that upon the occurrence of an Event of Default described in subsection 7.1(f),
all the Indebtedness shall automatically be immediately due and payable, and
Lender's obligation to fund any Working Capital Advance or any Development
Facility Loan hereunder shall automatically terminate, without notice of any
kind (including without limitation notice of intent to accelerate and notice of
acceleration) to Borrower or to any Target Center, guarantor, or to any surety
or endorser of any of the Notes, or to any other person. Borrower, each Target
Center, and each guarantor, surety, and endorser of any of the Notes, and any
and all other parties liable for the Indebtedness or any part thereof, waive
demand, notice of intent to demand, presentment for payment, notice of
nonpayment, protest, notice of protest, grace, notice of dishonor, notice of
intent to accelerate maturity, notice of acceleration of maturity, and diligence
in collection.
7.3 Right of Set-Off. Borrower hereby authorizes Lender, to the maximum
extent permitted under and in accordance with applicable laws, at any time after
the occurrence of an Event of Default which continues uncured, to set-off and
apply any and all deposits, funds or assets at any time held and any and all
other indebtedness at any time owing by Lender to or for the credit or the
account of Borrower against any and all Indebtedness, whether or not Lender
exercises any other right or remedy hereunder and whether or not such
Indebtedness are then matured.
ARTICLE VIII
GENERAL TERMS AND CONDITIONS
8.1 Notices. All notices, demands, requests, approvals and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given when (a) presented personally, or (b) three (3) days
after deposited in a regularly maintained mail receptacle of the United States
Postal Service, postage prepaid, certified, return receipt requested, or (c)
upon receipt of confirmation after sending by facsimile transmission, addressed
to Borrower or Lender, as the case may be, at the respective addresses or
facsimile number for notice set forth on the first page of this Agreement, or
such other address or facsimile number as Borrower or Lender may from time to
time designate by written notice to the other.
8.2 Entire Agreement and Modifications. The Loan Documents, together
with the Contribution Agreement and Transaction Documents, constitute the entire
understanding and agreement between the undersigned with respect to the
transactions arising in connection with the Working Capital Loan and the
Development Facility Loans, and supersede all prior written or oral
understandings and agreements between the undersigned in connection therewith.
No provision of this Agreement or the other Loan Documents may be modified,
waived, or terminated except by instrument in writing executed by the party
against whom a modification, waiver, or termination is sought to be enforced,
and, in the case of Lender, executed by a Vice President or higher level officer
of Lender.
8.3 Severability. In case any of the provisions of this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable, such
invalidity, illegality, or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
8.4 Cumulative Rights and No Waiver. Lender shall have all of the
rights and remedies granted in the Loan Documents and available at law or in
equity, and these same rights and remedies shall be cumulative and may be
pursued separately, successively, or concurrently against Borrower, at the sole
discretion of Lender. Lender's delay in exercising any right shall not operate
as a waiver thereof, nor shall any single or partial exercise by Lender of any
right preclude any other or future exercise thereof or the exercise of any other
right. Any of Borrower's covenants and agreements may be waived by Lender but
only in writing signed by an authorized officer of Vice President level or
higher of Lender or any subsequent owner or holder of any of the Notes. Except
as otherwise expressly provided in this Agreement and in any Note, Borrower
expressly waives any presentment, demand, protest, notice of default, notice of
intent to accelerate, notice of acceleration, notice of intent to demand
payment, or other notice of any kind. No notice to or demand on Borrower in any
case shall, of itself, entitle Borrower to any other or further notice or demand
in similar or other circumstances. No delay or omission by Lender in exercising
any power or right hereunder shall impair any such right or power or be
construed as a waiver thereof, or the exercise of any other right or power
hereunder.
8.5 Form and Substance. All documents, certificates, insurance
policies, and other items required under this Agreement to be executed and/or
delivered to Lender shall be in form and substance reasonably satisfactory to
Lender.
8.6 Limitation on Interest: Maximum Rate. Lender and Borrower intend to
contract in strict compliance with applicable usury law from time to time in
effect. To effectuate this intention, Lender and Borrower stipulate and agree
that none of the terms and provisions of any Note and any other agreement among
such parties, whether now existing or arising hereafter, shall ever be construed
as a contract to pay interest for the use, forbearance or detention of money in
excess of the Maximum Rate. If, from any possible construction of any document,
interest would otherwise be payable to Lender in excess of the Maximum Rate, any
such construction shall be subject to the provisions of this Section and such
document shall be automatically reformed and the interest payable to Lender
shall be automatically reduced to the Maximum Rate permitted under applicable
law, without the necessity of the execution of any amendment or new document.
Neither Borrower, endorsers or other persons now or hereafter becoming liable
for payment of any portion of the principal or interest of any Note shall ever
be liable for any unearned interest on the principal amount or shall ever be
required to pay interest thereon in excess of the Maximum Rate that may be
lawfully charged under applicable law from time to time in effect. Lender and
any subsequent holder of any Note expressly disavow any intention to charge or
collect unearned or excessive interest or finance charges in the event the
maturity of any Note, is accelerated. If the maturity of any Note is accelerated
for any reason, whether as a result of a default under any Note, or by voluntary
prepayment, or otherwise, any amounts constituting interest, or adjudicated as
constituting interest, which are then unearned and have previously been
collected by Lender or any subsequent holder of any Note shall be applied to
reduce the principal balance thereof then outstanding, or if such amounts exceed
the unpaid balance of principal, the excess shall be refunded to Borrower (and
Target Center, as applicable). In the event Lender or any subsequent holder of
any Note ever receives, collects or applies as interest any amounts constituting
interest or adjudicated as constituting interest which would otherwise increase
the interest to an amount in excess of the amount permitted under applicable
law, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance of such Note, and, if the principal
balances of such Note is paid in full, any remaining excess shall be paid to
Borrower (and Target Center, as applicable). In determining whether or not the
interest paid or payable under the specific contingencies exceeds the Maximum
Rate allowed by applicable law, Borrower and Lender shall, to the maximum extent
permitted under applicable law, (i) characterize any non-principal payment as an
expense, fee or premium, rather than as interest; (ii) exclude voluntary
prepayments and the effect thereof; (iii) amortize, prorate, allocate and
spread, in equal parts, the total amount of interest throughout the entire
contemplated term of the applicable Note (as it may be renewed and extended) so
that the interest rate is uniform throughout the entire term of such Note. The
terms and provisions of this section shall control and supersede every other
provision of all existing and future agreements between Lender and Borrower (and
Target Center, as applicable). As used in this Agreement, "Maximum Rate" means
the maximum non-usurious interest rate that at any time or from time to time may
be contracted for, taken, reserved, charged or received on the unpaid principal
or accrued past due interest under applicable law and may be greater than the
applicable rate, the parties hereby stipulating and agreeing that Lender may
contract for, take, reserve, charge or receive interest up to the Maximum Rate
without penalty under any applicable law; and "applicable law" means the laws of
the State of Texas or the laws of the United States of America, whichever laws
allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future. In the event applicable law provides for an
interest ceiling under Chapter One of Title 79, Texas Revised Civil Statutes
Annotated, as amended, that ceiling shall be the indicated rate ceiling, subject
to any right Lender may have in the future to change the method of determining
the Maximum Rate.
8.7 Third Party Beneficiary. Borrower acknowledges that the lenders under
the $14,000,000 facility are third party beneficiaries to this Agreement. Except
for the preceding sentence, this Agreement is for the sole benefit of Lender and
Borrower and is not for the benefit of any third party.
8.8 Borrower In Control. In no event shall Lender's rights and
interests under the Loan Documents be construed to give Lender the right to, or
be deemed to indicate that Lender is in control of the business, management or
properties of Borrower or any Target Center or has power over the daily
management functions and operating decisions made by Borrower or any Target
Center.
8.9 Use of Financial and Other Information. Borrower agrees that Lender
shall be permitted to investigate and verify the accuracy of any and all
information furnished to Lender in connection with the Loan Documents, including
without limitation financial statements, and to disclose such information, or
provide copies of such information, to representatives appointed by Lender,
including independent accountants, agents, attorneys, asset investigators,
appraisers and any other persons deemed necessary by Lender to such
investigation.
8.10 Collateral Assignment of Loan Documents. Lender shall have the
right to collaterally assign all of its rights under this Agreement and the
other Loan Documents to the third party beneficiaries described in Section 8.7.
Lender shall have the right to disclose in confidence such financial information
regarding Borrower as may be necessary to complete any such assignment or
attempted assignment, including without limitation, all financial statements,
projections, internal memoranda, audits, reports, payment history, appraisals
and any and all other information and documentation in Lender's files relating
to Borrower. This authorization shall be irrevocable in favor of Lender, and
Borrower waives any claims against Lender or the party receiving information
from Lender regarding disclosure of information in Lender's files, and further
waive any alleged damages which may result from such disclosure. Borrower
acknowledges that Lender intends to make a collateral assignment of its rights
under this Agreement and the Loan Documents for the benefit of one or more of
its or its parent company's lenders and will not be authorized to amend or
modify this Agreement or the Loan Documents, or grant waivers of any of its
rights thereunder without the prior written consent of some or all of such
lenders.
8.11 Further Assurances. Borrower agrees to execute and deliver, and
cause each Target Center to execute and deliver, to Lender, promptly upon
request from Lender, such other and further documents as may be reasonably
necessary or appropriate to consummate the transactions contemplated herein.
8.12 Number and Gender. Whenever used herein, the singular number shall
include the plural and the plural the singular, and the use of any gender shall
be applicable to all genders. The duties, covenants, obligations, and warranties
of Borrower in this Agreement shall be joint and several obligations of Borrower
and of each Borrower if more than one.
8.13 Captions. The captions, headings, and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
8.14 Continuing Agreement. This is a continuing agreement and all
rights, powers, and remedies of Lender under this Agreement and the other Loan
Documents shall continue in full force and effect until each Note is paid in
full as the same becomes due and payable and all other Indebtedness is paid and
discharged, until Lender has no further obligation to advance moneys to Borrower
under this Agreement, and until Lender, upon request of Borrower, has executed a
written termination statement. Furthermore, the parties contemplate that there
may be times when no Indebtedness is owing, but notwithstanding such occurrence,
this Agreement (and all other Loan Documents) shall remain valid and shall be in
full force and effect as to subsequent Indebtedness and Advances, provided that
Lender has not executed a written termination statement.
8.15 Applicable Law. This Agreement and the Loan Documents shall be
governed by and construed in accordance with the laws of the State of Texas and
the laws of the United States applicable to transactions within such state.
8.16 NO ORAL AGREEMENTS. THE WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURE PAGE FOLLOWS]
SIGNATURE PAGE TO
LOAN AGREEMENT
EXECUTED as of the 31st day of January, 2000.
BORROWER:
PRIME REFRACTIVE, L.L.C.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
LENDER:
PRIME REFRACTIVE MANAGEMENT, L.L.C.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
